United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. Bataillon Senior United States District Judge.
matter is before the court on the defendant’s motion to
vacate under 28 U.S.C. § 2255, Filing No. 53.
Under the Rules Governing Section 2255 Proceedings for the
United States District Courts (“2255 Rules”), the
court must perform an initial review of the defendant’s
§ 2255 motion. See 28 U.S.C. § 2255, Rule
4(b). The rules provide that unless “it plainly appears
from the face of the motion and any annexed exhibits and the
prior proceedings in the case that the movant is not entitled
to relief in the district court, ” the court must order
the United States Attorney to respond to the motion.
April 9, 2014, defendant was arrested for immigration
violations during a search warrant at his residence.
Filing No. 1 at 3 (Complaint.) Fraudulent identity
documents were seized, along with a 9mm firearm. Filing
No. 27 at 2 (Plea Agreement). Defendant’s
fingerprints were taken and compared with federal databases,
revealing that he had been deported on prior occasions.
Id. Defendant had a prior conviction for delivery of
a controlled substance in 1998. Filing No. 1 at 3
(Complaint). After this conviction, he was incarcerated and
subsequently deported in 1999. Id. Defendant also
had a prior conviction for illegal entry and served fifteen
months before a second deportation in December 2006.
Id. There is no record of any permission sought or
granted to allow defendant to return to the United States.
Filing No. 27 at 2 (Plea Agreement).
his most recent arrest, a grand jury charged defendant with
three different counts. Filing No. 13 (Indictment).
Count I charged illegal alien found in the United States
following deportation in violation of Title 8, United States
Code, Section 1326(a). Id. Count II charged felon in
possession of a firearm in violation of Title 18, United
States Code, Section 922(g)(1). Id. at 2. Count
III charged illegal alien in possession of a firearm in
violation of Title 18, United States Code, Section 922(g)(5).
Id. On June 26, 2014, defendant signed a plea
agreement with the United States in which the parties agreed
that Count II and Count III would be dismissed in exchange
for defendant’s plea of guilty as to Count I.
Filing No. 27 (Plea Agreement). On November 13,
2014, following the acceptance of the plea agreement and
defendant’s guilty plea, the District Court sentenced
him to fifty-seven months in prison followed by three years
of supervised release. Filing No. 39 at 2
(Transcript of Sentencing Proceedings); Filing No. 30 at
November 25, 2014, defendant filed an appeal of his sentence
with the United States Court of Appeals for the Eighth
Circuit. Filing No. 34 (Notice of Appeal). The Court
of Appeals dismissed defendant’s appeal on May 6, 2015.
Filing No. 47 (Eighth Circuit Court of Appeals
Opinion). On October 7, 2015 defendant filed a motion to
vacate, set aside, or correct his sentence under 28
U.S.C. § 2255. Filing No. 53 (Motion to
Vacate). After performing an initial review of the motion
under 28 U.S.C. § 2255, Rule 4(b), the District
Court found that it did not plainly appear that defendant was
entitled to no relief and required the government to answer.
The government requested that the District Court deny
defendant’s § 2255 motion without an evidentiary
hearing. Filing No. 59 at 6 (Answer to
§ 2255 motion defendant alleges numerous grounds as to
ineffective assistance by his counsel, Julie Hansen
(“Hansen”), including: (1) counsel’s
failure to file a motion to suppress the search of his home
based on alleged Fifth Amendment violation; (2)
counsel’s failure to review his Presentence
Investigation Report until after rescheduling a sentencing
hearing; (3) counsel’s failure to file a motion for
downward departure based on family and cultural assimilation
under U.S.S.G. § 2L1.2; and (4) counsel’s failure
to meet with him prior to filing his appeal with the United
States Court of Appeals for the Eighth Circuit. Filing
No. 53 at 5-7 (Motion to Vacate).
28 U.S.C. § 2255, a federal prisoner is entitled to
“relief if his ‘sentence was imposed in violation
of the Constitution or laws of the United States, or . . .
was in excess of the maximum authorized by law.’”
King v. United States, 595 F.3d 844, 852 (8th Cir.
2010) (quoting 28 U.S.C.A. § 2255(a)). A movant may
raise ineffective assistance of counsel issues in collateral
proceedings. See United States v. Hughes, 330 F.3d
1068, 1069 (8th Cir. 2003). “The right to counsel is a
fundamental right of criminal defendants; it assures the
fairness, and thus the legitimacy, of our adversary
process.” Kimmelman v. Morrison, 477 U.S. 365,
374 (1986).Under the Fifth and Sixth Amendments, the right to
assistance of counsel extends to both trial and to a
defendant’s first appeal of right. See Gideon v.
Wainwright, 372 U.S. 335, 344 (1963)(stating the right
to counsel is fundamental at the trial level); Evitts v.
Lucey, 469 U.S. 387, 392-93 (1985) (discussing the
fundamental right to effective assistance of counsel on a
criminal defendant’s first appeal as of right).
right to counsel includes the right to reasonably effective
counsel.’” Strickland v. Washington, 466
U.S. 668, 686 (1984) (quoting McMann v. Richardson,
397 U.S. 759, 771, n.14 (1970)). In order to make out a claim
of ineffective assistance, a petitioner must satisfy the
familiar two-part Strickland standard, which
requires a showing “that his lawyer’s performance
fell below the minimum standards of professional competence
(deficient performance) and that there is a reasonable
probability that the result of the proceedings would have
been different if his lawyer had performed competently
(prejudice).” Alaniz v. United States, 351
F.3d 365, 367-68 (8th Cir. 2003)).
performance “is that which falls below the ‘range
of competence demanded of attorneys in criminal
cases.’” Sinisterra v. United States,
600 F.3d 900, 906 (8th Cir. 2010) (quoting Strickland,
466 U.S. at 687). “The standard is an objective
one, viewed in light of professional norms prevailing when
the representation took place.” Id. at 906
(citing Bobby v. Van Hook, 558 U.S. 4, 6, 130 S.Ct.
13, 16 (2009) (per curiam)). The court must consider
“whether counsel’s assistance was reasonable
considering all the circumstances.”
Strickland, 466 U.S. at 688. The reasonableness of
counsel’s challenged conduct depends upon the facts of
the particular case, viewed as of the time of counsel’s
conduct. King, 595 F.3d at 852. To establish
prejudice under Strickland, a petitioner must
“demonstrate that there is a reasonable probability
that, but for counsel’s claimed unprofessional errors,
the result of the proceeding would have been
different.” Christenson v. Ault, 598 F.3d 990,
996 (8th Cir. 2010).
defendant “faces a heavy burden” to establish
ineffective assistance of counsel. DeRoo v. United
States, 223 F.3d 919, 925 (8th Cir. 2000). However, an
attorney's failure to file a notice of appeal after being
instructed to do so by his client constitutes ineffective
assistance entitling petitioner to section 2255 relief, no
inquiry into prejudice or likely success on appeal being
necessary. Barger v. United States, 204 F.3d 1180,
1182 (8th Cir. 2000); Witthar v. United States, 793
F.3d 920, 922-23 (8th Cir. 2015) (stating that prejudice is
Supreme Court has rejected "a bright-line rule that
counsel must always consult with the defendant regarding an
appeal." Roe v. Flores-Ortega, 528 U.S. 470,
480 (2000) ("We cannot say, as a constitutional matter,
that in every case counsel's failure to consult with the
defendant about an appeal is necessarily unreasonable, and
therefore deficient."). Where there is no express
direction from a defendant to appeal, "counsel has a
constitutionally imposed duty to consult with the defendant
about an appeal when there is reason to think either (1) that
a rational defendant would want to appeal (for example,
because there are nonfrivolous grounds for appeal), or (2)
that this particular defendant reasonably demonstrated to
counsel that he was interested in appealing."
Id. at 480. In making the determination as to
whether counsel had been effective in counseling the
defendant about appeal, "courts must take into account
all the information counsel knew or should have known."
Id. (noting that "a highly relevant factor in
this inquiry will be whether the conviction follows a trial
or a guilty plea, both because a guilty plea reduces the
scope of potentially appealable issues and because such a
plea may indicate that the defendant seeks an end to judicial